Kullman v. . Cox

Parker, Ch. J. This record as it comes to us entitles the plaintiff to an affirmance of the judgment, for the facts, which we must accept, are contained in the findings of the trial court. Every fact therein found has some evidence to support it — indeed every material fact but one is established by uncontradicted evidence, and that one relates to the value of the property at the time of the foreclosure sale; the affirmance by the Appellate Division, therefore, makes those facts conclusive upon this court. The question of law presented is whether the facts established title in the plaintiff personally or in him as trustee for his children. The premises were conveyed to plaintiff’s wife by one Hupfél in February, 1886, to whom she gave a purchase-money mortgage for §3,800. In April, 1895, plaintiff’s wife died intestate leaving her surviving her husband and four minor children. The amount then due and unpaid on the purchase-money mortgage was §3,600. The plaintiff was not able to pay the semi-annual interest due on July 1st, 1895, nor were any of his children able to pay the same, and the mortgagee, Hupfel, having failed to receive his interest after demand made, brought an action to foreclose the mortgage, which resulted in a judgment of foreclosure and sale, in which it was provided that any party to the action might purchase at the sale, and under *414 it Hupfel purchased the property on the 16th day of January, 1896, for $4,000. “ The price realized on the foreclosure sale at least equaled what the property was worth at that time.” Shortly thereafter the referee duly conveyed the premises to Hupfel. “ There was no collusion between Hupfel and the plaintiff herein in instituting and prosecuting said foreclosure suit. The foreclosure action was instituted and prosecuted by said Hupfel in entire good faith for his own benefit, because neither Adelbert Kullman (the plaintiff) nor any of the owners of the property paid, or were able to pay, the interest due on July 1st, 1895.” Shortly thereafter Hupfel conveyed the premises to this plaintiff, and accepted in part payment therefor a purchase-money mortgage for $3,800. Each one of these facts was established by uncontradicted evidence with the exception of the one which in effect asserts that the property was not at the time of the sale worth more than the amount paid by Hupfel. There was a conflict of testimony as to value, but there was evidence fully justifying" the finding made. It is not pretended that there was any defect whatever in the foreclosure proceedings, and it is apparent, therefore, from the facts found, that Hupfel acquired a perfect title to the premises which he could vest in any one to whom he saw fit to convey them, and which he did vest in this plaintiff by his conveyance to him. Indeed, no one pretends that Hupfel did not acquire a good title free and clear from all claims that the former owners had in the property prior to the sale under the judgment of foreclosure ; nor is it pretended that Hupfel could not convey as good a title as he had to any one else. But instead it is suggested that the plaintiff’s former relation to the property and its owners disabled him 'from acquiring the title which Hupfel concededly had. Ho authority is, or can be, cited in support of that position, and one difficulty with the reasoning by which it is sought to be established is that it proceeds upon an erroneous assumption of fact, namely, that the plaintiff prior to the foreclosure failed to discharge a duty he owed *415 to the owners of the property, that of paying the interest on the mortgage. In the first place it may well be doubted whether it was his duty to pay the interest had he the money with which to pay it in view of the finding that the value of the property did not exceed the amount of the judgment, for it necessarily follows that the interest of the children had no value whatever, and even a tenant by the curtesy is not called upon to pay money for the protection of a thing that is without substance and is valueless. But, aside from the fact that the interest of the children in the property was without value at that time, the plaintiff could not pay the interest because he did not have the money with which to pay it, and so the trial court found upon evidence to support it; and, indeed, it should be said that there is not a suggestion in the record to the contrary. It follows, therefore, that the foreclosure, which was neither suggested nor instigated by the plaintiff, was not due to any fault on his part. That being so, the plaintiff had the same right as any other person to purchase the property of Hupfel when he found himself in such improved financial condition as warranted him in attempting its acquisition. The plaintiff’s testimony to the effect that the property was in the first instance in reality his, and that he furnished the $200 that was paid on account of the purchase price at the time the deed was taken in the name of his wife, does not call for reversal of the judgment, inasmuch as the case has been disposed of in all the courts upon the assumption that the plaintiff’s wife was the owner of the property at the time of her death. The judgment should be affirmed, with costs.